Opinion
Nos. 05-09-00238-CR, 05-09-00239-CR
Opinion Filed August 10, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F07-57366-I and F07-73543-I.
Before Justices RICHTER, LANG-MIERS, and MYERS.
OPINION
Appellant Calvin Bernard Sumrell sold cocaine and methamphetamine to undercover narcotics officers and was charged with two counts of delivery of a controlled substance in the amount of 4 grams or more but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(c) (Vernon 2010). He was convicted by a jury in a consolidated trial. After the State sought a punishment enhancement based on appellant's repeat-offender status, the jury found the enhancement allegation true and sentenced appellant to concurrent terms of 48 years in prison. On appeal, appellant complains about the trial court's rulings concerning (1) appellant's request to waive his right to counsel, (2) appellant's oral request for a continuance, (3) the State's motion on the day of trial to delete from the indictment in the cocaine case the name of the person to whom appellant was charged with delivering the cocaine, and (4) evidence of extraneous offenses. In the alternative, appellant argues that the judgments should be modified to correct a clerical error in the name of the lead prosecutor. We modify the judgments and affirm as modified.
First and Second Issues
In his first issue appellant argues that the trial court erred when it allowed appellant to waive his right to counsel. In his second issue appellant argues that the trial court abused its discretion by denying his oral motion for continuance.Background
The following procedural facts are relevant to appellant's first two issues. The day before appellant's trial was scheduled to begin, the trial court held a hearing to address appellant's request to dismiss his appointed counsel and represent himself pro se. During that hearing, the trial court asked appellant if he knew what he was charged with in both cases, and appellant answered, "Yes, sir." The trial court asked appellant about his education, and appellant told the trial court that he attended school until the ninth grade, and that he had a GED. The trial court asked appellant if he reads and writes English, and appellant answered, "Yes, sir." The trial court asked appellant whether he had ever read any law books and appellant answered, "Yes, sir. I've read some." But when the trial court asked appellant when it was that appellant had read law books, appellant answered, "I didn't. I had-I need a chance to study the law in order to prepare for my case[.]" The trial court explained to appellant that his case was proceeding to trial the next day, and asked appellant if he felt like he could adequately represent himself. Appellant told the trial court that he could adequately represent himself if the court would grant him a continuance so he could learn what he needs to know. The trial court reiterated that appellant was not getting a continuance, and asked appellant again, "Do you feel like you can represent yourself?" In response, appellant told the trial court, "I cannot represent myself without full knowledge of the law." The trial court announced that the trial would proceed and told appellant's counsel, "You'll remain his attorney." The trial court then read both indictments to appellant, admonished him on the applicable punishment ranges for each offense, and asked him how he pleaded in response to each indictment. Appellant did not respond, so his counsel entered pleas of not guilty on his behalf. Before the conclusion of the hearing, appellant complained that the trial court had denied his "right to go pro se." The trial court explained to appellant that he could proceed pro se, but that he would have to be ready to begin his trial the next morning. In response, appellant said, "I can't be ready to go in the morning," and "I'm not ready." Appellant further explained, "[M]y attorney has been ineffective to me, so I want to go pro se. In order for me to go pro se, I need to know the law and in order to fight my case and file the right motions on my behalf." The trial court denied appellant's requests to proceed pro se and for a continuance, and told the parties to be back in the morning for trial. The next day, before voir dire began, appellant renewed his request to proceed pro se. He told the trial court that he had read the code of criminal procedure and some case law, but that he had not read the sections of the health and safety code that he was accused of violating. The trial court repeatedly told appellant that there were dangers in proceeding pro se because of appellant's lack of knowledge of the law, and appellant responded, "Yes, sir. It's very dangerous." The trial court also explained to appellant that his appointed counsel had already moved for and obtained favorable rulings on his behalf such as excluding certain evidence and removing a deadly-weapon allegation. Appellant, nevertheless, continued to insist that he wanted to represent himself. And after appellant's counsel told the trial court that appellant had already been to trial in another case "out of the same transaction," and that she would sit with appellant and assist him if necessary during the trial, the trial court agreed to allow appellant to proceed with standby counsel.Analysis
In his first issue, appellant argues that the trial court erred when it allowed appellant to waive his right to counsel and represent himself because the trial court did not adequately ensure that his waiver was knowing and voluntary. More specifically, appellant acknowledges that the trial court inquired about his level of education and admonished him on the dangers of self-representation during the pretrial hearing; but he apparently contends that those admonishments were insufficient because trial court did not repeat them again the next morning when appellant re-urged his request to proceed pro se. We disagree with appellant's contention that the trial court's admonishments during the pretrial hearing were rendered inadequate because the trial court did not repeat all of them the next day. Nevertheless, the trial court's admonishments about the dangers of self-representation are not relevant in this case because appellant did not proceed entirely pro se-he had standby counsel at his disposal. This Court has previously held that when a defendant has standby counsel at his disposal, the trial court is not required to admonish the defendant on the dangers of self-representation. See Young v. State, 05-98-00036-CR, 2000 WL 2676, at *1 (Tex. App.-Dallas Jan. 4, 2000, no pet.) (not designated for publication) (citing Robertson v. State, 934 S.W.2d 861, 865-66 (Tex. App.-Houston [14th Dist.] 1996, no pet.), and Walker v. State, 962 S.W.2d 124, 126-27 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd)); see also Jones v. State, No. 14-04-00950-CR, 2005 WL 2787306, at * 1 (Tex. App.-Houston [14th Dist.] Oct. 27, 2005, no pet.) (per curiam) (mem. op., not designated for publication) ("Although it is true that a judge ordinarily must admonish a defendant before allowing him to represent himself, the rules are different where the trial judge allows appointed counsel to continue to assist and advise the pro se defendant. A judge need not admonish an accused of the dangers and disadvantages of self-representation when he allows the accused to present his own defense but, at the same time, appoints standby counsel to advise the accused as necessary."); Robinson v. State, No. 05-04-00235-CR, 2005 WL 1670626, at *2 (Tex. App.-Dallas July 19, 2005, no pet.) (not designated for publication). Here, because appellant had standby counsel at his disposal, the trial court was not required to admonish appellant on the dangers of self-representation. As a result, we resolve appellant's first issue against him. In his second issue, appellant argues that the trial court abused its discretion when it denied his oral motion for continuance. More specifically, appellant argues that he was not given adequate time to prepare for trial, which "violated his right to due process." Under article 29.03 of the Texas Code of Criminal Procedure, "[a] criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). And under article 29.08, "[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Id. art. 29.08. And because of these procedural prerequisites, the Texas Court of Criminal Appeals has held that oral motions for continuance preserve nothing for appellate review. See Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999). Appellant does not dispute that his motion for continuance was not in writing and was not sworn as required by the code of criminal procedure. Nevertheless, citing this Court's opinion in O'Rarden v. State, 777 S.W.2d 455 (Tex. App.-Dallas 1989, pet. ref'd), appellant urges us to conclude that the trial court's ruling on his oral motion for continuance is subject to appellate review "in the interest of justice and equity." We disagree. In O'Rarden, we essentially recognized a due-process exception to the preservation requirements governing continuance motions. Id. at 459-60. Although the court of criminal appeals has not expressly overruled our decision in O'Rarden, it has recently, and repeatedly, rejected other attempts to invoke a due-process exception to the preservation requirements governing continuance motions. See Anderson v. State, 301 S.W.3d 276, 278-81 (Tex. Crim. App. 2009), rev'g 268 S.W.3d 130 (Tex. App.-Corpus Christi 2008); see also Lizcano v. State, No. AP-75789, 2010 WL 1817772, at *22 (Tex. Crim. App. May 5, 2010) (not designated for publication). As a result, we cannot conclude that the trial court's ruling on appellant's oral motion for continuance is subject to appellate review. Instead, we conclude that, by failing to file a written, sworn motion for continuance, appellant has failed to preserve his second issue for appellant review. See Anderson, 301 S.W.3d at 278-81.Third Issue
In his third issue, appellant argues that the trial court erred when it allowed the State to change the indictment in the cocaine case on the day of trial.Background
Before voir dire began, the State moved in the cocaine case "to abandon the language indicating who the cocaine was delivered to." The trial court explained to appellant what the State was requesting, and that the State believed that the language at issue was surplusage. The trial court then said, "[Y]our attorney didn't agree with that and I assume that you don't agree with it either." Appellant responded, "I don't agree with that because I want to go separate on both causes." In response, the trial court identified three cases and said, "[The State] brought me these cases and I want you to have an opportunity to read them." After a pause in the proceedings, the trial court told the parties that it would "approve" the State's request to strike the name at issue from the indictment, and explained to the parties,I don't think [the State's motion] even needs to be approved if you're just taking out that language. The case that was provided to myself and [appellant] to be able to read says that the names [sic] of the complainant is not a statutory element of the offense, so I don't know and I went and read the statute and all it says is it's delivered or possessed with intent and so forth. So I will approve that.After the trial court's explanation, appellant did not object or otherwise respond. The next day, before the jury was ushered into the court room and sworn, the following exchange occurred:
[Appellant]: I have a question about the indictment, about what I objected to. Do that include my 10-day notice that I'm supposed to get for amendment? I never got a notice. I would like to invoke my right to the 10-day notice. I never got a notice on that. I think that a —
THE COURT: So you object to proceeding without your 10-day notice on an amendment?
[Appellant]: Yes, Sir.
THE COURT: The State has proposed these as-not amendments, but just removing surplusage and therefore it's not subject to the 10-day-rule; therefore, your objection is overruled. Anything else?
[Appellant]: No, that's it.
Analysis
On appeal, appellant argues that the trial court erred when it granted the State's motion concerning the indictment in the cocaine case for four reasons. First, appellant argues that this case is materially distinguishable from the primary case relied upon by the State, Allen v. State, No. 05-06-01707-CR, 2008 WL 2454541 (Tex. App.-Dallas June 19, 2008, no pet.) (mem. op., not designated for publication), because "there was no indication in the record that [the defendant in Allen] did not know to whom he was accused of selling the cocaine or that he was surprised by the proof at trial." Second, appellant also argues that "the variance was material" because, in addition to deleting the name of the person to whom appellant was accused of delivering cocaine, the State also changed the names of the persons to whom appellant was accused of delivering drugs in two other indictments, including the indictment in the methamphetamine case. Third, appellant argues that the State's "confusion" in all three charging instruments "suggests, if not compels, the conclusion that [a]ppellant would be confused as to the exact charges against him." And fourth, appellant argues that the change to the indictment subjected him to the risk of being prosecuted later for the same offense. As a threshold issue, we must determine whether appellant has preserved these complaints for appellate review. See, e.g., Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009) ("Preservation of error is a systemic requirement of every appeal.") (citing Tex. R. App. P. 33.1). "Whether a party's particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial." Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). To determine whether the complaint on appeal comports with the complaint made at trial, "we consider the context in which the complaint was made and the parties' shared understanding at that time." Id. In the trial court, appellant essentially complained that he was entitled to ten days' notice concerning the change to his indictment, and the trial court apparently construed appellant's complaint as raising a complaint that his rights under article 28.10(a) of the Texas Code of Criminal Procedure had been violated. In response, the trial court essentially explained to appellant that the notice requirement under article 28.10(a) did not apply because the State did not amend the indictment-it only removed surplusage. After the trial court's explanation, appellant did not raise any other objections or otherwise argue at any time that the change to the indictment was improper or prejudicial, or that the trial court should have denied the State's request. On appeal, appellant does not argue that he was entitled to ten days' notice. Instead, he essentially argues that the trial court should have denied the State's request because the change to the indictment was not "a simple abandonment" of surplusage, and because he was surprised and prejudiced by the change. These complaints, however, do not comport with appellant's complaint at trial. As a result, we conclude that appellant has not preserved his third issue for appellate review.Fourth Issue
In his fourth issue, appellant argues that the trial court erred when it admitted into evidence the video from his police interview in which he "admitted that he sold controlled substances."Background
On the day of appellant's trial, before the venire was ushered into the court room and sworn, the following discussion occurred:THE COURT: The video is what?
[Counsel]: It's the video of that statement about whether [appellant] was going to work with the police and all the things that we discussed earlier, but I do not know if the State intends to offer it or not[.]
THE COURT: Mr. Sumrell, have you reviewed the video?
[Appellant]: I seen it during the trial, but I haven't reviewed the whole video. Probably showed one time.
[Counsel]: It was shown during his last trial and he was in the courtroom when it was shown.
THE COURT: Okay. And you made some objections this morning, about what? The video is —
[Counsel]: Specifically, in addition to objecting to it as being irrelevant and prejudicial and it brings up extraneous offenses that are immaterial to the charges in this case. There was a specific period of time on that tape and we have the numbers of when we need to mute it because it goes into issues regarding his prior convictions, him going to prison, why he was in prison, how long he's been out and all those sorts of things. About, I think it's about 40 seconds maybe that was muted out during the first trial.
THE COURT: You said you weren't going to use that anyway?
[The State]: That's correct, Your Honor.
THE COURT: Okay. You have anything to add to that, Mr. Sumrell?
[Appellant]: No, not to that statement.During the testimony of the detective who interviewed appellant for approximately 30 minutes after he was arrested, the State offered into evidence State's Exhibit 6, the DVD of that interview, for record purposes only. The State further explained that it was only offering into evidence for all purposes, and intending to play for the jury, an 8-minute segment from State's Exhibit 6, and would exclude 40 seconds of video from within that 8-minute segment. The trial court confirmed that appellant had seen State's Exhibit 6 before, and asked if he had any objections. Appellant answered, "I would say like [sic] to just reoffer all the objections that [appellant's counsel] made prior to trial." In response, the trial court stated, "Okay. Well, there was part of it that I granted and part of it I denied and I will continue those objections. I mean, those rulings." During the State's questioning of the detective, the State said that a "tiny bit" of the video from appellant's interview was "taken out, because of the rules of evidence." After the video was played for the jury, the detective testified about the video played for the jury. The detective testified that, in the video that was played for the jury, appellant admitted to selling marijuana, and also admitted to "messing with everything," which the detective assumed "meant cocaine as well as maybe methamphetamines or pills, as well." Appellant did not object to the detective's testimony about State's Exhibit 6.